Maine's OUI / DUI look-back will not be extended beyond 10 years

Read my latest post at the Portland Press Herald site: Legislative committee rejects 15 year OUI look-back. From the article:

Second, third and subsequent OUI offenses have serious mandatory minimum sentences in Maine. Current law “looks back” 10 years to count prior convictions within that period. While the sentencing judge can consider older offenses, they don’t change the mandatory minimum penalties. In its original form, LD 1729 would have increased the look-back period from 10 to 15 years. Amendments to the bill eliminated that increase....[Read more]

Burrage v. U.S.: Trafficked Drug must be But-For Cause of Death

On 1/27/14 the United States Supreme Court decided Burrage v. United States. The opinion limits the use of a Federal drug trafficking sentencing enhancement for cases where the drug user dies. The decision considers one specific statute, but it has lot to say about legal causation in general. In the end, the high court unanimously rejects the criminal causation rule used by Maine and a handful of other states.

Alleyne v. United States: An Element By Any Other Name...

In Alleyne v. United States, the Supreme Court dropped the biggest bombshell on criminal sentencing since Booker in 2005. The holding is relatively simple, overruling the 2002 case Harris v. United States to find that any fact which increases the minimum sentence for a crime must be proved to a jury beyond a reasonable doubt and cannot be found by a judge on a preponderance standard. This renders current federal sentencing procedure unconstitutional and invalidates the sentencing schemes in a large number state jurisdictions. It's an important decision that has been a long time coming, but it leaves some big questions unanswered.

Domestic Violence Assault in Maine has no Mandatory Minimum Penalty

The Maine Supreme Judicial Court recently decided State of Maine v. Rogers Harrell. The Case settles an issue that has bugged criminal defense attorneys, prosecutors, and defendants for some time. In Maine, conviction for assault carries with in a mandatory minimum fine of $300 and that language is right in the statute. There's no such language is in the Domestic Violence assault statute, but some judges still had felt that the fine should be mandatory and imposed it anyway.

The Harrell case presented an interesting issue where the Prosecution and Defense agreed that the fine was not mandatory and did not ask for it as part of an agreed upon 7 months jail sentence. At the plea and sentencing, the judge told them to go screw themselves and imposed the fine anyway because they believed it to be mandatory.

The defense lawyer filed an appeal and won!

The Maine Supreme Court vacated the $300 fine portion of the sentence. The court concludes: "Construing the domestic-violence-assault statute as the rule of lenity requires us to do, we interpret the statute not to carry a mandatory minimum fine." So, no fine for Harrell.

It's kind of hilarious that a judge would go out of their way to find a find a sentencing provision mandatory. Mandatory minimum sentences are designed to tie the judge's hands and force them to impose sentences that the legislature wants for political reasons rather than sentences carefully tailored to the unique circumstances of each case. Why would a judge insist, against the language of the statute, against the objection of the defense and against the recommendation of the prosecutor on giving this fine?

It is hard to say, I know almost nothing about the details of this case or the offense characteristics. Maybe this judge just wants to take a tough stand on domestic violence. Maybe there was a financial factor in this case that made the fine a particularly apt sanction. Maybe there is a political motivation for judges to appear to be carrying out the legislature's will. 

I am sure that any judge would say, "There is no sinister motive here, I am just trying to interpret the law they give me an apply it fairly." Still, that interpretation is guided by a perspective on how the criminal process should work. While the system pays a lot of lip service to ideas like presumption of innocence, beyond a reasonable doubt and the rule of lenity, these principals sometimes seem more like rhetorical tropes than foundational tenants. 

The issue here is relativly minor, does Harrell get a fine or not, but the sentencing judge's action pulls back the curtin on what I believe is a pervasive judicial philosophy: that the law should almost never be construed to give an advantage to the accused. Apparently, some believe this so strongly that they will read in language or meaning which is absent from the law or the arguments of either party. Does the court do this out of a sense of fairness, or to save itself from doing what it most dearly despises? We see this where judges go out of their way to find an iffy traffic stop was legitimate, or to admit testimony from a prosecution expert who would never be allowed if offered by the defense. There seems to be a concern that, on close calls, the prosecution should not be unfairly prejudiced. The result is that the defendant suffers the consequences of an illegal arrest, or dubious testimony, or an unnecessarily harsh sentence.

So thank you SJLC for getting it right. The court could have snuck around doing anything here, avoided changing the law and done it all in a mem dec. The fine was not illegal per se, a fine of up to $5000 is authorized for this class of crime and they might have just found that the judge can impose any legal fine, mandatory or not. In the end, this only saved the guy 300 bucks (and the chance to get arrested for failing to pay on time). Still, it is something, and that is more than nothing, and nothing is what defendant's get from appeals about 90% of the time.